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Shree Sant Kripa Intellectual And Ors vs Evolve Brands Pvt. Ltd on 22 January, 2019

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(COMM) 31/2019
     SHREE SANT KRIPA INTELLECTUAL AND ORS. ..... Plaintiffs
                       Through: Mr. Shailen Bhatia, Ms. Ekta Nayar
                                   Saini and Ms. Neelam Pathak, Advs.
                            Versus
     EVOLVE BRANDS PVT. LTD.                           ..... Defendant
                       Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                ORDER

% 22.01.2019 IA No.950/2019 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

CS(COMM) 31/2019 & IAs No.948/2019 (u/O XXXIX R-1&2 CPC) & 949/2019 (u/O XXVI R-9 CPC)

3. The plaintiffs have sued the sole defendant for permanent injunction restraining infringement of the mark „SYSKA‟. The plaintiffs, at pages 53 to 55 have depicted the packaging of the plaintiffs and the defendant and which shows that the defendant, if at all is connected with the impugned packaging, is showing the subject goods to be made in China to be imported and marketed by the plaintiffs. The claim is thus of counterfeiting, though not so spelt out in the plaint.

4. The counsel for the plaintiffs has argued that the defendant, besides selling the counterfeit goods to M/s Continental India Pvt. Ltd., from whom the plaintiffs learnt of the counterfeit products, has also supplied goods to others. It is also contended that M/s Continental India Pvt. Ltd. has returned the goods so sold by the defendant to the defendant and the said goods must CS(COMM) 31/2019 Page 1 of 3 be available in the premises of the defendant and for which issuance of commission is sought. It is also contended that there are other counterfeit goods in the market and the issuance of the commission would demonstrate the same also.

5. Issue summons of the suit and notice of the application for interim relief to the defendant by all modes including dasti and electronic returnable on 1st February, 2019.

6. Till further orders, the defendant is restrained from using the mark „SYSKA‟ for any purpose whatsoever.

7. Commission is also issued to visit the premises of the defendant at M/s Evolve Brands Pvt. Ltd., registered office at 186, Munirka Vihar, New Delhi-110067 and 125 A, Lower Ground Floor, Shahpur Jat, New Delhi- 110049 and to seize all the goods/packaging materials bearing the trade mark „SYSKA‟ or any other similar mark and to prepare an inventory thereof and to, after sealing the said goods, hand over the same to the superdari if any offered by the defendant, else to the superdari offered by the plaintiffs.

8. The commissioners are also authorised to inspect and report on the books of accounts, inventory and records found at the aforesaid two premises pertaining to any goods bearing the mark „SYSKA‟.

9. The plaintiffs to arrange for photography of the commission proceedings.

10. The defendant and its officials are directed to render all help in execution of the commission.

11. The Station House Officers, having jurisdiction over the premises aforesaid are also directed to, in the event of assistance being sought, render necessary assistance for execution of the commission.

12. Mr. Shashank Khurana, Advocate (Mob.9711560992) and Mr. Ayush Agarwala, Advocate (Mob.9999105064) are appointed as the Commissioners. Mr. Shashank Khurana, Advocate to visit the premises of the defendant at M/s Evolve Brands Pvt. Ltd., registered office at 186, Munirka Vihar, New Delhi-110067 and Mr. Ayush Agarwala, Advocate to visit the premises of the defendant at 125 A, Lower Ground Floor, Shahpur Jat, New Delhi-110049 and to seize all the goods/packaging materials bearing the trade mark „SYSKA‟ or any other similar mark and to prepare an inventory thereof and to, after sealing the said goods/packaging materials, hand over the same to the superdari, if any offered by the defendant, else to the superdari offered by the plaintiffs.

13. The fee of the Commissioner is fixed at Rs.1 lakh each, besides out of pocket expenses.

14. The Commissioners to execute the commission within one week and to submit report within one week of execution of the commission.

15. IA No.949/2019 is disposed of.

16. The provisions of Order XXXIX Rule 3 of CPC be complied either at the time of execution of the commission and/or within 24 hours thereof.

A copy of this order be given dasti under the signatures of the Court Master.

RAJIV SAHAI ENDLAW, J.

JANUARY 22, 2019/„bs‟..